Division of Property in Divorce
Arkansas judges will look to Arkansas Code Annotated 9-12-315 when making property division determinations in a divorce. Here's A.C.A. 9-12-315 in its entirety: § 9-12-315. Division of property
(a) At the time a divorce decree is entered:
(1) (A) All marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:
(i) The length of the marriage;
(ii) Age, health, and station in life of the parties;
(iii) Occupation of the parties;
(iv) Amount and sources of income;
(v) Vocational skills;
(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
(ix) The federal income tax consequences of the court's division of property.
(B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter.
(2) All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subdivision (a)(1) of this section, in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.
(3) (A) Every such final order or judgment shall designate the specific real and personal property to which each party is entitled.
(B) When it appears from the evidence in the case to the satisfaction of the court that the real estate is not susceptible of the division as provided for in this section without great prejudice to the parties interested, the court shall order a sale of the real estate. The sale shall be made by a commissioner to be appointed by the court for that purpose at public auction to the highest bidder upon the terms and conditions and at the time and place fixed by the court. The proceeds of every such sale, after deducting the cost and expenses of the sale, including the fee allowed the commissioner by the court for his or her services, shall be paid into the court and by the court divided among the parties in proportion to their respective rights in the premises.
(C) The proceedings for enforcing these orders may be by petition of either party specifying the property the other has failed to restore or deliver, upon which the court may proceed to hear and determine the same in a summary manner after ten (10) days' notice to the opposite party. Such order, judgment, or decree shall be a bar to all claims of dower or curtesy in and to any of the lands or personalty then owned or thereafter acquired by either party.
(4) When stocks, bonds, or other securities issued by a corporation, association, or government entity make up part of the marital property, the court shall designate in its final order or judgment the specific property in securities to which each party is entitled, or after determining the fair market value of the securities, may order and adjudge that the securities be distributed to one (1) party on condition that one-half ( 1/2) the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.
(b) For the purpose of this section, "marital property" means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired prior to marriage or by gift or by reason of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death or a transfer on death arrangement;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of divorce from bed and board;
(4) Property excluded by valid agreement of the parties;
(5) The increase in value of property acquired prior to marriage or by gift or by reason of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death or a transfer on death arrangement, or in exchange therefor;
(6) Benefits received or to be received from a workers' compensation claim, personal injury claim, or social security claim when those benefits are for any degree of permanent disability or future medical expenses; and
(7) Income from property owned prior to the marriage or from property acquired by gift or by reason of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death or a transfer on death arrangement, or in exchange therefor.
(c) The court is not required to address the division of property at the time a divorce decree is entered if either party is involved in a bankruptcy proceeding. The cases interpreting section 315 are far too numerous to be listed here. But, here are a few major points to remember:
- Generally, marital property is split 50-50. However, keep in mind that the court has the power to make an unequal division of marital property if the circumstances call for it. This would be unusual, but not unheard of. (See Lytle v. Lytle, 266 Ark. 124 (1979); Cavin v. Cavin, 308 Ark. 109 (1992))
- Marital fault is not a factor in division of property.
- Although the presumption is that nonmarital property owned prior to the marriage shall be returned to the party who owned it originally, occasionally nonmarital property may be divided. (See Williford v. Williford, 280 Ark. 71 (1983)). But see Hale v. Hale, 307 Ark. 546 (1992) and Farris v. Farris, 287 Ark. 479 (1985), both holding that nonmarital property acquired during the marriage cannot be divided.
- Marital property may include property acquired after separation, but before divorce is final. This time period is usually after the divorce complaint is filed and before the divorce decree is entered. (See Askins v. Askins, 288 Ark. 333 (1986))
As always, make sure you keep your attorney advised of any and all property interests and when and how they are/were acquired.